United States v. Terrence Sundsmo , 540 F. App'x 757 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30356
Plaintiff - Appellee, D.C. No. 3:10-cr-00085-RE
v.
MEMORANDUM *
TERRENCE LEE SUNDSMO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Terrence Lee Sundsmo appeals from the district court’s judgment and
challenges the 188-month sentence imposed following his guilty-plea conviction
for possession of child pornography with previous conviction for sexual abuse of a
minor, in violation of 18 U.S.C. § 2252A(a)(5)(B), as enhanced by § 2252A(b)(2).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Sundsmo argues that the district court erred by imposing a five-level
enhancement under U.S.S.G. § 2G2.2(b)(5) because his 1996 convictions for
sexually abusing a minor do not qualify as relevant conduct or expanded relevant
conduct under U.S.S.G. § 1B1.3(a). We review de novo, United States v. Garner,
490 F.3d 739, 742 (9th Cir. 2007), and conclude that the enhancement under
section 2G2.2(b)(5) was properly imposed. See U.S.S.G. § 2G2.2(b)(5) & cmt.
n.1; U.S.S.G. Manual app. C., amend. 537 (1996) (“pattern of activity”
enhancement applies to “past sexual abuse or exploitation unrelated to the offense
of conviction” and, thus, reaches more “broad[ly] than the scope of relevant
conduct typically considered under §1B1.3”); Garner, 490 F.3d at 743 (“The plain
language of the Commentary to § 2G2.2 eliminates the need for any temporal or
factual nexus between the offense of conviction and any prior act of sexual abuse
or exploitation; the provision obviously intends to cast a wide net to draw in any
conceivable history of sexual abuse or exploitation of children.”). Sundsmo’s
various arguments for a narrower interpretation of section 2G2.2(b)(5) are
unavailing.
AFFIRMED.
2 11-30356